State v. Pearce

14 Ind. 426

• Court: Indiana Supreme Court
• Decided: June 9, 1860
• Status: Published

Opinion

Perkins, J.

This is an appeal upon a point reserved by the state.

The defendant was tried upon an indictment for larceny. On the return of the verdict against the defendant, it was discovered that the entry of the return of the indictment by the grand jury, at a previous term of the Court, had been omitted; and thereupon the prosecuting attorney moved that the entry be then made nunc pro tunc. The defendant admitted the fact that ‘the indictment had been thus regularly returned, but objected to the nunc pro tunc entry, and moved on his part for a new trial, on account of the alleged defect in the record.

The Court should have sustained the motion for the nmc pro turne entry. Of its own motion, it should have ordered it on the facts. This Court, of its own motion, would order a certiorari to bring up such an entry to affirm a judgment. But there was no final judgment in the case when the appeal was taken, and it must be dismissed.

_D. Nation, I. E. McDonald, and A. L. Roache, for the state.

The appeal is dismissed.